Striking the Balance Between Workplace Fairness and Workplace Safety

WASHINGTON -- Employers often refuse to hire people with arrest and conviction records even years after they have completed their sentences, leading to recidivism and higher social services costs, experts told the U.S. Equal Employment Opportunity Commission (EEOC) at a meeting today at agency headquarters.

The meeting was part of a series convened by the EEOC to examine the implications of various hiring practices. In addition to laying out the scope of the issue, the meeting was designed to identify and highlight employers’ best practices, ways in which arrest and conviction records have been used appropriately, and current legal standards.

“The EEOC issued its first written policy guidance regarding the use of arrest and conviction records in employment in the 1980s and held a meeting on the subject in 2008,” said EEOC Chair Jacqueline A. Berrien. “Today, we had the opportunity to add to our knowledge of this issue and learn about the practical ways employers have been able to balance business concerns with the need to ensure that employment practices are fair and non-discriminatory."

Amy Solomon, Senior Advisor to the Assistant Attorney General of the Office of Justice Programs at the Department of Justice, told the Commission that the problem of reentry intersects with a number of issues, including health, housing, education, as well as employment. Solomon is the co-chair of the federal interagency Reentry Council’s staff working group. The Reentry Council, of which the EEOC is a member, is a Cabinet-level interagency group convened by Attorney General Eric Holder to examine all aspects of reentry of individuals with criminal records with the goals of 1) making communities safe from recidivism and victimization; 2) assisting people returning from jail or prison to become productive citizens; and 3) reducing the direct and collateral costs of incarceration and saving tax dollars.

Michael F. Curtin, Jr., President and CEO of the D.C. Central Kitchen, told the Commissioners of the tremendous success his organization has had educating people returning from the criminal justice system to work in the food service and catering industry. Many of the individuals trained, employed, and placed in restaurants, hotels and other food service establishments by the D.C. Central Kitchen have had criminal records.

Victoria Kane, an attorney with the hospitality group Portfolio Hotels & Resorts, related best practices that her company has initiated to increase the hiring and retention of people with arrest and conviction records. She urged employers to develop and implement a “responsible business plan” and overcome “fears, biases and hiring challenges” in order to facilitate hiring people with arrest and conviction records. Robert H. Shriver, III, Senior Policy Counsel for the Office of Personnel Management, told the Commission that, contrary to what some believe, having an arrest or conviction record does not automatically mean that a person can not work for the federal government. Federal regulations permit agencies to consider each applicant’s unique situation.

Cornell William Brooks, Executive Director of the New Jersey Institute for Social Justice, a social justice “think and do tank” that produces research, generates policy analysis, and collaborates with government on reform projects in areas of criminal and juvenile justice, testified about the economic harm to individuals and communities caused by arbitrary employment barriers to individuals with criminal records. He emphasized the importance of incorporating the growing research on recidivism into EEOC guidance, as well as the need for education on fair employment best practices in this area. Brooks also offered a variety of examples of people thwarted in their attempts to maintain gainful employment by arbitrary restrictions, including a client who was let go after two years of solid service because the organization obtained a state contract that barred employment of anyone with a conviction record.

Such “collateral consequences” reach into many areas of employment. Stephen Saltzburg testified representing the American Bar Association Criminal Justice Section, which is composed of prosecutors, defense counsel, judges and law enforcement and corrections personnel. He explained that some federal and state licensing restrictions are costly and arbitrary. For example, some states train individuals while in prison for careers in barbering and cosmetology, but then bar them upon release from getting these very licenses because of their conviction records.

Barry A. Hartstein, a shareholder in the law firm of Littler Mendelson, who has extensive experience counseling companies in employment law, detailed to the Commission the confusing and often contradictory pressures on businesses when using arrest and conviction records in making employment decisions, including conflicting laws. Hartstein urged the Commission to consider these constraints on businesses, especially small businesses, in developing guidance or in deciding whether to pursue litigation in certain cases.

Noting the unreliability of criminal record databases, Adam Klein, a partner in the law firm Outten & Golden LLP, warned the Commission of the proliferation of online companies offering “instant” background checks that generate reports that often contain inaccurate or incomplete information and that rarely, if ever, provide explanatory details about any criminal record information. Juan Cartagena, President of LatinoJustice PRLDEF, told the Commission that the Latino community also suffers the direct and indirect consequences of disproportionate rates of incarceration.

The Commission will hold open the July 26, 2011 Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meetings. Public comments may be mailed to

or emailed to Commissionmeetingcomments@eeoc.gov. All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meetings. Comments will also be placed in the EEOC library for public review.

The EEOC enforces the federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.